Justice
as
Healing
A Newsletter on Aboriginal Concepts of Justice
• 2014 • Vol.19, No.3 • Native Law Centre
1
Walking the Traditional Paths:
Uncovering the Gateway to
Indigenous Healing in the
Justice System
2
The Justice System
and Aborginal People.
The Aboriginal Justice
Implementation Commission
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Walking the Traditional Paths:
Uncovering the Gateway to
Indigenous Healing in the Justice
System
Editor’s Note: Rupert Ross retired in April 2011 after serving 26 years as an Assistant Crown
Attorney with the Ontario Ministry of the Attorney General. His profession led him to over 20
fly-in First Nation communities in northwestern Ontario to conduct criminal prosecutions. During
his career, Mr. Ross searched for ways to make the criminal justice system more responsive to the
existing needs and cultural traditions of aboriginal peoples. His interest in law and aboriginal
communities has continued into his retirement, and in May of 2014, Mr. Ross released his third
book, Indigenous Healing: Exploring Traditional Paths, which explores indigenous healing from
colonization.
The following is an excerpt from Indigenous Healing: Exploring Traditional Paths.*
Introduction
Some time ago, I attended a justice
conference with a large group of
Crown attorneys, police officers and
aboriginal people. I remember an
Anishinaabe (Ojibway) Elder telling us
a story before he opened the conference
with a traditional prayer. He told us that
before the white man came to Turtle
Island, his people had their own way of
praying. It involved turning their heads
skyward, searching the heavens with
eyes wide open and raising their arms in
a gesture of greeting and friendship. He
told us that they had prayed that way for
centuries and it seemed to work, because
everybody has pretty food life here on
Mother Earth.
Then the white man came, and he
had a different way of praying. Instead of
turning his head skywards, he turned his
head down. Instead of holding his arms
out, he pulled them in tight and clasped his
hands in a tipi shape below his chin. And
instead of keeping his eyes open, he held
them firmly closed for the whole prayer.
When the Indians saw that, they
decided to give it a try. So that’s what
they did – they prayed, head down, hands
clasped and eyes closed.
When they finished their prayer and
looked up, however, all their land was
gone! So that’s why, he told us, they went
back to praying in their own way. When
the Elder told us that story, he changed
everything in the room. We had been three
groups of people with a history of not
getting along all that well together. Police
often hold Crown attorneys in rather low
regard, either because we tell them they
don’t have enough evidence or because we
simply fail to prove their charges in court.
Sometimes, Crown attorneys can come
down on police for things like breaches
of Charter rights that make the evidence
they brought us inadmissible in court. And
it’s fair to say that aboriginal people have
many good reasons to be wary of both
groups. At any rate, you could feel the
polite tension in that room – until, that is,
the Elder told us that story.
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Justice as Healing • 2014 • Vol.19, No.3
We all laughed, and we all laughed
together. It was just such a beautiful,
respectful way to break the ice at the very
start of the conference. It set a commonground tone that took all of us through
the next two fays in relative comfort with
one another. We all became better listeners
because of it, and better able to work
together on the serious topics we were
there to discuss.
I tell this story now with the same
hope: that it will help to set a tone of being
together in a state of mutual respect. If
we can all laugh at the same thing, then
anything is possible.
It’s been a long time since the
publication of my first two books, Dancing
with a Ghost: Exploring Aboriginal
Reality in 1992 and Returning to the
Teachings: Exploring Aboriginal Justice
in 1995. I have been largely silent since
then, with the exception of several
unpublished papers I’ve written that have
been making the rounds. My attention
and energies have, instead, been focused
on my wife, Val; on our three growing
children; and on the pressing demands of
northwestern Ontario. Now, after twentysix years, I’ve finally said goodbye to the
courts and the formal justice system, and
our children have grown and moved away.
This is supposed to be my quiet time,
when my focus rests on Val, on our travels
together (especially back into the bush)
and on our children and (at the moment)
one grandson.
So why am I writing this book?
In fact, there are many reasons, but I
want to share two in particular at the outset.
Both came from a Calgary conference that
was called some years ago to discuss the
creation of the Truth and Reconciliation
Commission (TRC), a body established
as a result of aboriginal lawsuits against
churches and governments for their
operation of the residential schools. Much
discussion took place at the conference
of the commission’s determination to
investigate that system and chronicle the
impact across the decades. At the end of
those discussions, the microphone was
offered to people who had attending
residential schools and wanted to comment
on how they saw the reconciliation process
unfolding. Two aboriginal people, a
woman and a man, said things that have
stayed with me ever since.
The first speaker was an aboriginal
Grandmother. She said that she wished
the TR every success in helping to tell the
full story of residential schools. Then she
surprised me, because she didn’t mention
the need to educate non-aboriginal
Canadians about that system. Instead,
she focused on aboriginal children.
Specifically, she said she felt they needed
to understand how their parents and
grandparents had been changed by those
schools. “Maybe then,” she said softly,
“they can learn to forgive us for failing
them so badly.”
I have heard the same sentiment many
times since then, and from many different
people. The most recent was an aboriginal
woman who spoke on the radio about a
weekend gathering of female Elders and
youth, and how surprised the Elders were
to learn how little the youngest generation
knew of residential schools. She too made
a plea for that kind of education to begin.
So that is one reason for writing: to
help tell the story of residential schools
to the people who need to hear it if they
are ever going to forge healthy relations
with their own parents, grandparents and
communities. I know I’m not the only
one to tell that story, or even the best one
to do it, but I’ve been told, and I believe,
that every voice counts. My hope is that
aboriginal and non-aboriginal people will
find value in what I write here.
The second person who came to
that TRC microphone was an older
aboriginal man, an obvious “graduate”
of residential school (now known as a
“survivor” to distinguish the experience of
imprisonment within residential schools
from simply being a student in the
country’s regular schools). He told the
assembly that he had just one question
he needed the TRC to answer for him:
“Why can’t I cry?” he explained that
even when he knew things were sad,
he could not cry. At that time, I had just
begun my exploration of what western
psychology calls emotional intelligence.
Much of the discussion centres on what
a child needs to be able to develop the
emotional skill sets necessary to become
an emotionally mature adult. I was
particularly interested in learning about
what happened to children who grow
up in states of emotional numbness,
with no one wanting to hear how they
feel and no one able to guide them
into nuanced awareness of the many
feelings that course through them. That,
as I was beginning to understand, was
what children experienced in residential
schools. When that man asked, “why can’t
I cry?” he seemed to be speaking on behalf
of generations of aboriginal children who
had no choice but to grow up intentionally
numbing themselves, those emotional skill
sets as adults, many do not know how to
respond to frustrations of life except by
continuing that numbness or, particularly
when alcohol or drugs are involved
exploding into anger and violence.
That story of intentional numbing also
needs to be told because the combination
of childhood trauma and emotional
numbing is, in my view, one of the most
important legacies of residential school.
As I have come to understand it, this
explains why the destructive forces begun
within residential schools still plague so
many aboriginal families today, even
when the last school shut its doors forty
years ago. Parents cannot teach what they
never learned and they cannot demonstrate
what they have never experienced. The
numbness and later difficulties in life may,
in fact, be even more intense today than
they were originally, if only because the
stockpile of traumatic experiences has
been building in generations since.
So that is the second reason I am
writing: once we gain some understanding
of how psychologically damaging the
residential school system was to those
who attended, we must then explore why
it remains such a powerfully destructive
force today. Aboriginal children need to
know about the history of their families,
and non-aboriginal Canadians need to
know about the true history of our country.
I don’t think Canada understands, and I
think we ought to.
That being said, I also want to write
about the hugely inspiring things I have
encountered within traditional culture,
and about the determination of so many
leading aboriginal people to restore
traditional visions to prominence in the
modern world. Non-aboriginal Canada
needs to see this determination as well,
and to gain some understanding of how
those visions can play an important role
in Canada today. This cultural revival
is being promoted as not only the best
way to restore health within aboriginal
families and communities, but also as
simply a better way to live. As much as I
have been saddened by the extraordinary
violence and despair I have witnessed
in so many aboriginal communities, I
have also been blessed to meet some of
the most inspiring and powerful teachers
within the larger aboriginal community.
All of them focus on learning about, and
sharing, traditional visions of humankind
and our best way to live on Mother Earth. I
have seen first-hand their determination to
bring their original histories to full flower
in the modern world. I have been told that
there are now over a thousand aboriginal
people holding Ph.D.s in Canada, and I
know something of what they’ve been
taught and where they want to go. I want
to share some of those stories, too.
In the last two years before my
retirement in 2011, I was lucky enough to
be given a temporary placement with the
First Nations and Inuit Health Branch of
Health Canada, working on community
healing programs. Our primary task
was to supply the TRC with health
support workers to take care of the often
elderly people who came forward at the
hearings to share their stories of life within
residential school. I spent time with some
of the four hundred-odd people who filled
the role of healer, most of them aboriginal,
and I learned a great deal about how they
saw healing in the modern context. After
years of working with lawyers and judges,
seeing the pain brought out by the courts,
the time that I spent with the healers was
very special; I will always be grateful to
them for sharing so readily with me. I
also witnessed the renewal of the National
Native Alcohol and Drug Addiction
Program (NNADAP) and travelled across
Canada to hear how aboriginal people
understood the high degree of substance
abuse in their communities, as well as to
work with them on redefining the kinds
of healing processes that might be most
effective. In this role, I met one Mohawk
Justice as Healing • 2014 • Vol.19, No.3
woman who is determined to restore
emotional skill sets to her people, and I
experienced her excitement as I sat in on
her training sessions.
The more I learned about those
kinds of healing activities, the more I
saw that they shared a larger goal: they
all wanted to anchor aboriginal life in
traditional cultural visions once again.
That experience affected me deeply. I
believe that the rest of Canada needs
to learn about these visions, about how
aboriginal people see them as being a
part of the modern world, and about
the determination of so many people to
bring them back to life. For this reason,
I have included many quotations from
other authors as I go along. I think it is
important for non-aboriginal Canadians to
understand how many aboriginal people
have become well educated in the western
world yet remain determined to restore
traditional visions. I have also quoted
many non-aboriginal psychologists,
academics and other researchers, primarily
to demonstrate the degree to which they
have come to agreement on such realities
as the devastating impact of residential
schools. Many of the authors whose
work I have quoted are listed at the back
of the book, with brief descriptions of
their careers and writings. I encourage
everyone to begin looking at work such as
theirs. The body of literature that speaks
to aboriginal life and history in Canada
is growing rapidly, and I suspect it will
change Canada’s sense of its own history
as time goes on.
Most of this book will focus on how
aboriginal people see a healthy future,
not the sadness of their colonized past.
I acknowledge that I like what I have
learned about traditional visions. To me
they are sane, exhilarating and productive.
My only concern lies in how well I can
give voice to them in English, because
they come out of a different paradigm,
a different way of understanding how
humankind fits into the life of Mother
Earth. I suspect that many of the ways of
articulating that vision simply cannot be
replicated in English, but that’s all I’ve
got to work with. I’ll have to fall back
on something I was told by a Mohawk
woman who recently invited me to make
3
a presentation at her community’s annual
Justice Day: “I think you have a very
positive way of relating and talking to
both First Nations and non-First Nations,
which is a rare gift indeed.” I hope she is
right, and that I can convey even a small
sense of my appreciation of the beautiful
balances struck within traditional visions.
In that regard, I want to pass
along something I heard from a Cree
Grandmother, Maria Linklater, who
was speaking to a group of aboriginal
youngsters from across Canada, telling
them stories about the ups and downs
in her life. We were all sitting outside in
a circle under a tree, with warm prairie
sunshine dappling through the leaves. She
spoke of the times in her life when the
sadness was so engulfing that is seemed
as if there were only darkness all around
her, but then something bright or cheerful
always came along to bring her back into
balance. She spoke of times when the
unfairness of situations was so hurtful
that she wanted to strike out in anger, but
something generous or compassionate
always came along to bring her back into
balance once more. Then she paused, as
if an idea had just occurred to her. She
slapped her thigh, chuckled out loud
and said something I’ve never forgotten:
“You know, I think I finally figured out
what it means to live a good life.” That
declaration really caught my attention,
because “a good life” is a serious concept
within aboriginal traditions, and because
Elders seldom tell others what they should
think, say or do. “Maybe,” Maria told
us, “you know you’re living a good life
when you get to my age, and you look
back maybe five years or so, and you find
yourself saying, ‘Boy, I sure didn’t know
too much … way back then!’”
As the years go by, I will continue
to unravel what she told us, finding new
significance in her words. For one thing,
I love the idea that “a good life” does not
demand amassing a stockpile of answers,
but rather encountering deeper questions
as your struggle along. As a result, I no
longer worry about finding myself saying
“I don’t know” far more frequently than I
used to.
B u t h e r Te a c h i n g s u g g e s t e d
something else, as well: if I acknowledge
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Justice as Healing • 2014 • Vol.19, No.3
that every five years or so I’ll probably
change my advice to myself, why would
I try to give anyone else advice along
the way? Instead, all I can do is tell my
stories as best I can. If they happen to
touch someone in a positive way, that’s
wonderful. If they don’t, well, they don’t,
but it’s all I can offer.
And that’s the spirit in which I
write, as a co-explorer, knowing that I’ll
probably see things differently as time
passes and my questions get deeper still. I
must be patient and remember the fragility
of what I think I know. We have a duty to
offer our own stories, however, just in case
something we say does touch someone
else in a positive way. Stories of struggle
can be especially important, because we
all struggle. In the same way, stories of
how we have overcome our challenges
might help inspire others to believe that
they too can overcome. I have witnessed
the extremes of aboriginal life, from the
most awful to the most awe-inspiring. I
have been told that the uniqueness of my
experiences within the aboriginal world
imposes a special duty to share my stories
as best I can.
I should also mention that I have
capitalized three words throughout the
book: Grandmother, Teachings and (with
a couple of exceptions) Elder. All three
words prompt deep feelings of respect
and appreciation in me, feelings I want to
honour whenever I write about them.
Finally, I remember what I was
told at the end of a week-long session
with some of the most highly educated
aboriginal people in North America. One
man turned toward me and said, “Okay,
get out there and write about what you’ve
learned.” When I looked a little puzzled
by the responsibility be was giving me,
his amused response was this: “You don’t
think you were invited here just for your
own good, do you?”
CHAPTER 1: Learning to See
Relationally
In the eighteen years since Returning
to the Teachings was first published,
my learning has never ended. Each new
experience has given old experiences a
new shape and my sense of exploration
has never diminished. While much of my
learning has been conscious work, perhaps
the most important parts just emerged
over time, showing up first as “that’s an
interesting thought” and then gradually
revealing much wider application than I’d
ever imagined.
For that, I have to thank Murdena
Marshall, an Elder from the Eskasoni
First Nation on Cape Breton Island, who
invested much of her time in me during
my first visit to her community in 1992. I
had just been seconded to the Aboriginal
Justice Directorate, a new division of
the federal Department of Justice, and
my job was to explore the aboriginal
assertion that, for them, justice was
primarily a healing activity, not one of
vengeance or retribution. My plan at the
time was to go to the various First Nations
engaged in healing to try to understand
what their version of counselling looked
like, whether it was working and, if
so, why. Her response took me a little
by surprise. Over the course of several
conversations, she made it clear that
gaining an understanding of aboriginal
healing programs required much more
than just visiting them and examining
what they did.
In her view, I first had to gain a deeper
appreciation of how aboriginal people saw
Creation and the position of humankind
within it. For those kinds of explorations,
she suggested I would be wise to seek
out Elders, philosophers and teachers and
spend time learning from them. If I felt
comfortable with the idea, it would also
be good to participate in traditions such as
the sweat lodge and letting-go ceremonies.
I will be forever grateful for that guidance.
As I sat with aboriginal philosophers
and teachers, it became clear that the
aboriginal preference for healing is not
a preference at all, but rather a necessary
manifestation of a world view that is
fundamentally at odds with the Cartesian,
Newtonian and Darwinian world view in
which I grew up.
World views are hard to talk about.
You have to substantially escape your own
to even begin to hear what is being said
about another. For instance, I remember
being told at an aboriginal justice
conference that western and aboriginal
scientists might approach the study of a
plant in very different ways. The western
scientist, we were told, would probably
focus primarily on understanding and
naming all the parts and properties of the
plant; figuring out its root, stem and leaf
patterns; examining how it takes in water,
sunlight and nutrients; determining how it
reproduces and its life expectancy; and so
forth. The aboriginal scientist, by contrast,
would likely focus on understanding what
role that plant plays in the meadow. She
would examine how it holds soil when
the rains come; what plants flourish close
to it; what birds, animals and insects are
attracted to it; how it is useful to them;
what kinds of conditions it needs to remain
healthy – that sort of thing. It’s not that
the two scientists would pay no attention
to the concerns of the other, just that their
emphases would be different; they would
see the plant in different ways.
Remember that I was told this story
at an aboriginal justice conference.
Afterwards, I was asked how aboriginal
people could possibly accept my justice
system, given such different ways of
seeing. I was confused. I honestly saw no
connection between that story and justice,
but I recalled Murdena’s encouragement
to keep my horizons wide and open. I
had already opened a special shelf in my
memory and labelled it “Indian puzzles,”
using it to store the many things I had seen
or experienced but couldn’t understand.
So, I stuffed that plant-in-the-meadow
story up there as well, hoping that one
day I might figure out the connection.
I’d already decided that I had no choice
but to wait, eyes and ears open, to see if
understanding came to me further down
the road.
I discovered the same phenomenon
virtually everywhere I went. There
were dozens of times when I was left
in confusion by responses that seemed
disconnected from what had prompted
them, but I’ll mention just a few other
instances at this point.
One of them took place during a
coffee break at a cross-cultural conference
with Anishinaabe people on the shores of
Lake of the Woods, just outside Kenora,
Ontario. An Elder, Alex Skead, came up
to me and, out of the blue, said, “You’re
a lawyer, so maybe you can answer a
question for me. I knew that Alex had done
a pipe ceremony for Pierre Trudeau when
he was prime minister, and that he didn’t
ask frivolous questions, so I was all ears.
“Why is it that all
of your people
seem to think that
law comes from
books?”... “That’s
not the way my
people understand
it,” he continued.
He then turned toward a window and
pointed out at the water, rocks and dense
bush surrounding us. “That’s where law
comes from!” he announced grandly.
Now I was totally lost. All I could think
of was Charles Darwin’s law of the jungle,
which describes us as living in dog-eatdog anarchy. Wasn’t that exactly what our
laws were designed to control? I didn’t
say that, of course, because I’d often
heard Alex giving his Teachings, and he
always spoke of values like respect, love,
caring, sharing and humility. How did he
get those values from the bush? Which
one of us was missing something, and why
did I think it was me? Without hesitation,
I stored that conversation with my other
Indian puzzles, right beside the plant-inthe-meadow story.
But there were even more confusing
conversations. At the opening of an
aboriginal justice conference in the
mountains of Alberta, a large shell filled
with smouldering sweetgrass was brought
around. Each of us wafted the fragrant
smoke over his head, eyes, ears, mouth,
chest and thighs, asking for its assistance
to think, see, hear, speak, and feel only
in healthy and respectful ways during
our time together. This smudging is a
common way for serious discussions or
events to begin. The discussion leader
then spoke about language differences,
explaining that aboriginal languages were
not so much noun-centred as they were
verb-centred, trying to emphasize not the
thing aspect of Creation but rather the
pattern, flow and function aspect. Once
again I felt lost, wondering what this had
to do with justice systems. He then held
Justice as Healing • 2014 • Vol.19, No.3
out the shell and told us that in aboriginal
languages it would be “called” differently
at various times. It could be a sacred vessel
at one point in time, a vessel holding
candy at another, or a vessel receiving
cigarette butts at some other time. It
all depended on its relationship to the
speaker and to the occasion. To call it,
as European languages did, by one name
for all occasions was seen as a “poorer”
way to speak of the world. When Indian
eyes look upon Creation, he told us, they
see a much more fluid, transforming and
interconnecting reality than Newton ever
did, with his linear, billiard-ball chains of
cause and effect.
Then he asked the question directly:
Given those differences, how could I
expect aboriginal people to happily join in
all the things done by the western justice
system? Once again, I had no answer,
because I couldn’t see how the story
connected to such a question. Up it went
onto the Indian puzzles shelf.
The final event I’ll mention here was
a time when I was told that western and
aboriginal cultures hold opposite views
about the importance of human beings
in Creation. The Bible puts humans right
at the top, set on earth to rule all the
fish in the sea and everything else out
there. Aboriginal Teachings present an
opposite hierarchy. Mother Earth, with
her lifeblood, the waters, plays the most
important role in Creation. Without the
soil and water, there would be no plant
realm. Without the plants, there would
be no animal realm, and without all of
them, there would be no us. Within this
reverse hierarchy, human creatures are
understood to be the least essential and
the most dependent. No longer masters
of Creation, we are its humble servants
instead.
In fact, I was given that Teaching
many times, and for years I failed to see
why it was important enough that I be
told about it. Why, I silently asked myself,
should seeing Creation in a way that puts
broccoli on a higher plane than my best
buddies lead to different visions of justice?
I felt that my Indian puzzles shelf was
starting to creak and groan under the load.
Then, one beautiful August day
several years later, a very small event hit
5
me in a very large way. I encountered an
Anishinaabe Grandmother hitchhiking
in northwestern Ontario and I gave her a
lift. Knowing that a lot of the old people
gathered blueberries at that time of year
to raise a little cash, I asked her how
the blueberry crop was that summer.
She immediately replied, “Oh, I was at
the garbage dump last night, and there
were sixteen bears out there!” That’s
all she said, apparently satisfied that it
was a complete answer to my question.
Fortunately, I had lived in the North
long enough to understand her answer:
bears thrive on blueberries, and a bumper
crop means all the bears are back in the
blueberry patches sporting huge purple
grins. A failed crop, however, causes
hungry bears to converge on the nearest
dumps in search of food.
But it was the automatic way she
answered that stuck out to me. I could feel
all the Teachings I had jammed onto my
Indian puzzles shelf doing little two-steps
around each other, as if they were finally
organizing around a theme. I had asked
about one thing, but I receive an answer
that seemed to refer to something separate
instead.
It started coming: things weren’t
separate to her at all, not the way there
were to me. Instead, all things acted
within complex webs of relationships.
Whatever happened with one rippled out
to touch and affect all others. If you talked
about one, you were talking about all, and
any point in their relationship would do.
To her, the real essence of Creation lay
in what was going on between things.
That’s where her attention went, to all the
relationships that bind things together so
strongly that a question about blueberries
gets an answer about bears.
Relationships. Why had I not seen
it before? After all, every sweat lodge
I had ever attended was called to a
close by everyone declaring, “All my
relations!” – referring not just to aunties
and grandfathers but to all the rocks, trees,
animals and waters that are known as
“relations” to aboriginal people.
As time went by, Teachings started
sliding down off my Indian puzzles shelf
and fitting together in ways I hadn’t
seen before. The plant-in-the-meadow
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Justice as Healing • 2014 • Vol.19, No.3
Teaching, for instance, told me that the
well-educated aboriginal eye sees not
the plant in isolation, but, instead, the
vast web of relationships connecting it
with everything else that makes up the
meadow. If you look at it that way, the
meadow is, in its essence, less a collection
of things than a complex web of evermodifying relationships. When I applied
this eye to justice, I suddenly saw the
aboriginal people’s complaint: you could
not deal with offenders alone. They were
the product of all their relationships,
and a true justice system would have to
bring in the other parties to those many
relationships if there were to be any hope
of turning him around. Victims were part
of a similar circle; once touched by a
crime, they brought new dynamics into all
their relationships as well. To return to the
plant-in-the-meadow story it is clear that
if the plant becomes ill, that is because
the other contributors to the meadow must
have changed their relationships with it
in some way. You can’t simply heal the
plant and send it back into an unchanged
meadow.
Relationships. They are
what make, direct,
unmake, damage
and reward us.
You can’t know me without knowing
something of my relationships. The
naming of the shell showed the same
emphasis. You don’t simply look at
something and put a name on it. Instead,
the relationship between it, the person
using it and the occasion of its use shapes
the way it must be named at any point in
time. Change any part of the dynamic and
you must also change how it is known – if,
that is, your eye has been trained to look
between, among and around, not simply
at.
I also began to see how Alex Skead
could find values like respect and sharing
when he looked out the window. When he
pointed to the bush as the source of law,
he was not directing me toward individual
things, but to relationships. What he saw,
and what his Teachings helped me see,
was a totality defined primarily by healthy,
sustaining and symbiotic relationships
between all the things out there. Bears
live off fish, who need frogs, who eat
insects, who need algae that live in water
and so forth. But these are not so much
linear chains of dependency as they are
interwoven, beneficial relationships of
such complexity that no one can truly know
what will happen if one element changes
its contribution to – its relationships with –
the mix. All we can say is that all elements
are necessary to one another, to us, and
to the relationships that sustain us. In the
language of the Elders, they are all sacred.
This fundamental law, taken from seeing
the symbiotic dynamism of the natural
order, was not Darwin’s thing-centred
law of violent competition, but the law
of respect. Each entity makes essential
and unique contributions to every other
thing, and in that way to the maintenance
of a healthy whole. Every contribution,
whether it seems positive or negative to
us, touches all and plays a role within
the whole. It is patterned forces, not the
matter they push around, that are the true
essence of Creation. Aboriginal Teachings
suggest we direct the bulk of our attention
toward those patterned forces if we wish
to maintain ourselves – and our world – in
health.
Alex’s message about the justice
system was wholly aligned with the plantin-the-meadow story but took it a step
further.
The eye cannot focus
simply on the
single acts of the
offender. Instead,
it must look at all
the relationships
that engaged him,
and the values
upon which those
relationships were
built.
In committing his crimes, the offender
saw himself as a solitary being and felt
indifferent to his impact on others. Didn’t
he need to be shown his connection with
others, his reliance on them and his duty to
create respectful relationships with them
instead? A system that fails to teach such
things to people cannot, in the aboriginal
view, be appropriately called a justice
system at all.
Finally, the reverse hierarchy of
Creation came tumbling off the Indian
puzzles shelf. If your way of knowing
focuses on separate things, you will likely
turn your attention to their individual
properties and powers. If you do that, it
is likely that humans will naturally stand
out as deserving the top ranking, given
our unique powers of communication,
movement, toolmaking and the like. From
that lofty vantage point, it would be only
natural for us to maintain our separation
from everything else, and to look down
on everything else as well. After all, what
lessons could the natural world have for
us except those that Darwin saw, the
lessons of dog eat dog and survival of
the fittest? If, by contrast, your way of
knowing focuses on relationships rather
than individual people, it will be natural
to see that the relationships between
human, animal, plant and earth/water
aspects of Creation are fundamentally
those of dependency. Once you do that,
everything changes. We become, in our
own eyes, dependent on the health of
everything else. Our obligation then must
be to promote accommodation with, rather
than to seek dominance over, all things.
A justice system must work to restore
accommodation where relationships
have been broken, not promote further
alienation between people.
Once I saw the importance of
relationships, many other memories came
back to me. I remembered one long day at
court in a remote First Nation where we
were assisted by an Elder who was giving
us a community perspective. One of our
last cases involved a spousal assault. The
accused pleaded guilty, and when it came
time for sentencing, the Elder asked the
judge where the man’s wife was, advising
us that she should be in the courtroom. I
recall jumping all over him, insisting that
the court was definitely not looking at her
behaviour, that it was only the husband’s
behaviour that we were dealing with, and
that putting an obligation on her to attend
was a further act of violence toward her.
The judge did the same, and the Elder sat
down, looking confused and perplexed.
Once I began to see the aboriginal focus
on relationships and on the obligation of
a justice system to bring accommodation
and respect back into them, I began to feel
very embarrassed. The Elder had thought
we were all there for the same reason – to
assist the couple in bringing health back
into their relationship – while we were
there only to punish the man for his use of
violence toward his spouse. In our system,
the focus was entirely on the offender;
in the Elder’s system, both parties to the
relationship would receive the benefit of
our counselling. He had obviously not
learned that our justice system seldom
takes a counselling role of any sort, except
to warn an offender that if he continues in
the same behaviour, we’ll be even harsher
the next time.
I also recall one of my first encounters
with an aboriginal Elder. Her name was
Mary Anne Anderson, and she lived in
the remote First Nation of Big Trout
Lake in northwestern Ontario. She was
a member of the band council, and she
began the meeting by asking me, through
the interpreter, why it was that all my
justice system did was take away her
people’s money, or take her people out
to jail, leaving her community with “the
problem.” I answered that it was our hope
that punishing people through either fines
or jail time would cause them to think
twice about repeating that behaviour in
the future. She thought about that, then
responded, “So your system is built on
terror, then.” I answered that we called our
approach general and specific deterrence
but that, yes, it was meant to scare people
away from committing crimes. She
responded by declaring that almost all the
crimes in her community were committed
by people who were drunk at the time and
that “you can’t scare an ill person into
becoming healthy.” Sensing that I was
running out of answers, I turned the tables
and asked her what her community used
to do to people who had caused injury of
some sort. She snorted then, and stated
in a tone that suggested it was almost
beneath her to have to reply to such a silly
question, “We didn’t do anything to them.
Justice as Healing • 2014 • Vol.19, No.3
We counselled them instead!”
I was given a similar response many
years later while speaking to a Cree
Grandmother from northern Quebec .
We were talking about family violence,
and she told me about the first time the
community had asked the judge to adjourn
a family violence case so they could begin
trying to bring the couple into healthier
ways of relating. The judge agreed, and
they began their work. Because they
were new at healing, however, they didn’t
watch the husband closely enough. He
went back to his wife and assaulted her
again. When the court returned and saw
the new charge, the judge declared that the
community had been given their chance to
heal and it hadn’t worked, so both cases
were now back in the court system. The
Cree Grandmother asked me about how
that could happen. “After all,” she told
me, “your jail system hasn’t worked after
four hundred years, but you never think
about shutting it down!” She went on to
tell me how she saw the dynamics: “We
know you put them in jail to protect the
women and children, but to protect us in
your way, you would have to keep them
there forever. Since you don’t, we’d like
to try our way instead.”
When I asked what their way was,
she told me that in their understanding
anyone who can act in these ways toward
others has somehow learned, perhaps
while growing up, that relationships are
based on values like anger, power, fear,
jealousy and so on. She asked me what
values people built relationships upon
“inside those jails of yours.” I took it as
a rhetorical question and just nodded.
She then expressed her fear that going
to jail might make it even harder for her
community to teach those men when they
came back how to live in relationships
built on values like trust, openness, respect
and sharing instead.
For the first time, I had an explanation
for why so many people who were abused
as children grow up to abuse children
themselves. I had always wondered, since
they knew first-hand the pain of being
a helpless victim, how they could later
inflict exactly the same pain on others.
Under the relational lens, my perspective
changed: they were simply operating
7
within the same kind of relationship they
knew from their childhood, the only kind
they knew of, a relationship based on
manipulation, fear, lies and using others
for self-gratification. The only difference
was that, as adults, they now held the
position of power in that relationship.
The Grandmother ’s words also
helped me understand why so many who
had been exposed to powerful healing
programs were ultimately moved into
a stage of explosive remorse: they had
never forgotten the pain of their own
victimization. In fact, it seems that a part
of them recalled that childhood pain even
as they victimized others, giving rise
to intense guilt and self-loathing. Not
knowing how to relate in any other way,
however, meant that they’d abuse again,
and that their guilt and self-loathing would
grow exponentially.
WRITING ABOUT THESE
EVENTS in this way may give the
impression that suddenly a light came on
and everything became clear to me. That
was certainly not the case. Bit by bit and
case by case, I found myself asking more
frequently what things might look like if
I viewed them relationally. My first real
use of the relational lens was, naturally,
in my work as a prosecutor. Frankly,
what I found surprised me, because it
slowly became evident that this ancient
traditional vision of who we are as human
beings showed the way to a much more
enlightened justice system than the one
we currently rely upon.
* Indigenous Healing: Exploring
Traditional Paths, is available at all major
bookstores and can be ordered online at
www.amazon.com
8
Justice as Healing • 2014 • Vol.19, No.3
The Justice System and Aboriginal People
The Aboriginal Justice Implementation
Commission
Editor’s Note: In 1988 the Manitoba Government created the Aboriginal Justice Inquiry – a
Public Inquiry into the Administration of Justice and Aboriginal people. In the fall of 1999 the
Inquiry released its report and by the end of that same year the Aboriginal Justice Implementation
Commission was established to develop an action plan centred on the Inquiry recommendations.
With the assistance of Elder advisers Eva McKay and Doris Young, Commissioners Paul Chartrand
and Wendy Whitecloud prepared the final report. The following are selected excerpts of Chapter 2
highlighting traditional Aboriginal Concepts of Justice and how those concepts translate within
Canada’s judicial system.*
Chapter 2 - Aboriginal Concepts
of Justice
Understanding Legal Concepts
There are really two types of
misunderstandings that arise from the
translation of terms from one language into
another. The first is easier to understand:
some words simply do not translate
directly into an Aboriginal language.
Much more difficult and, therefore,
more prone to misunderstandings, is the
attempt to convey the concepts implied by
technical legal words.
Take the word “truth,” for example.
“Truth” is a key concept in the Canadian
legal system and, as such, is considered
definite and definable. One swears “to
tell the truth, the whole truth and nothing
but the truth.” There are well-defined
sanctions for people whom the court
determines are not telling the “truth” or
are committing perjury.
On the other hand, the Ojibway
understanding of “truth” incorporates
the concept that “absolute truth” is
unknowable.
When an Ojibway says “niwiidebwe”, that means he is going to tell
“what is right as he knows it”. A standard
expression is “I don’t know if what I tell
you is the truth. I can only tell you what I
know.”
…
… Culturally ingrained habits of
respect for others and for other people’s
opinions, of doubt concerning one’s own
rightness and righteousness, of willingness
to be corrected, and of unwillingness to
set oneself up as an authority or expert,
account for the readiness with which
Aboriginal witnesses appear to change
their testimony.
An Aboriginal person challenged
by someone perceived to be wiser, more
powerful or more knowledgeable may
agree readily that perhaps the other person
is right. The Aboriginal person, in certain
circumstances, is open to suggestions
that he or she may have misunderstood,
misperceived or misheard the events that
are under examination.
The proceedings of the Royal
Commission on the Donald Marshall, Jr.,
Prosecution contain an example of the
Aboriginal understanding of the relativity
of truth.
Q What about the questioning
process, the questioning of a witness in
the Courtroom, of a Micmac witness?
Francis: That was another area in which
I found to be just devastating towards
Native people who attempted to defend
themselves in that—in almost all cases a
Native person who was not that familiar
with the English language would work
so hard to try to satisfy the person who
was asking the questions. If for instance,
either a lawyer or a prosecuting lawyer
was asking the questions to a native person
on the witness stand and was not satisfied
with the answer that he or she received,
would continue to ask the question by
checking a word here or there and asking
the same question and the native person
would change the answer from, let’s say
a “no” to a “yes” or a “yes” to a “no” ...
simply because he felt that whatever he
was doing, he wasn’t doing it right and he
would attempt to satisfy the person asking
the questions.
Q Regardless of the truth?
Francis: Regardless of the truth.
The exchange, odd though it sounds
to anglophone ears, illustrates the point
that the lawyer or prosecuting lawyer was
searching for “absolute truth,” a concept
the witness’ culture does not accept.
…
Other concepts embedded in
Aboriginal culture and expressed through
Aboriginal languages would be interpreted
somewhat differently in English. Concepts
of time and space, for example, are much
less precise in Aboriginal languages,
while they are exactly measured and
divided into uniform units in English.
More specifically, words describing time
or distance in Aboriginal languages would
tend to be vague, such as “near,” “too
heavy” or “after sundown,” as compared
to “three feet,” “110 pounds” and “a
quarter after 11” in English.
The inability to name an exact time,
or estimate a distance or a weight with
precision, is due in large part to the
irrelevance of these concepts to Aboriginal
life. In a courtroom, the persistence of a
lawyer in trying to elicit a precise response
results in the witness becoming convinced
that the lawyer is asking for verification
of his or her own point of view.
The Aboriginal witness, when
confronted by a question whether the
distance was 10, 20 or one foot, is stumped.
The information is of no interest to the
witness but appears to be of considerable
importance to the lawyer. The lawyer is in
a position of authority and, therefore, is to
be honoured by concurrence with his or
her point of view, whatever it might be. So
the Aboriginal witness will try to reassure
the lawyer that the information is correct.
Many Aboriginal people are just as vague
when it comes to such things as house
numbers. An individual knows where
home is in terms of how to get there, but
may not bother to remember the house
number. This very circumstance has
resulted in many people being recorded
mistakenly by the police as having
“no fixed address,” thus affecting their
prospects for bail or consideration during
sentencing.
(Endnotes Omitted )
*The complete report is available online
at www.ajic.mb.ca or telephone (204)
945-3101.